Nat. Review – Bryant’s private lawsuit against Obamacare uses one surprising precedent: Roe v. Wade

In April, a group of Mississippi citizens, including Lt. Gov. Phil Bryant, filed the first private class-action suit to challenge the Obama health-care law. The complaint cites all the legal precedents one would expect, but there is one big surprise: Roe v. Wade.

That’s right: The 1973 Supreme Court decision declaring a woman’s right to an abortion could be a key weapon against Obamacare. The Mississippi lawsuit (Bryant et al. v. Holder) is the first to highlight the inherent contradiction between the new law’s individual mandate and the “zone of privacy” first introduced in Roe.

Most of the legal commentary concerning Obamacare has focused on the important question of whether the law is a legitimate exercise of Congress’s constitutional power to regulate interstate commerce. The law’s supporters rely on New Deal–era precedents that define the Commerce Clause broadly — so broadly, in fact, that Speaker Nancy Pelosi described Congress’s power to regulate health care as “essentially unlimited.”

Strong words. But what Pelosi seems to forget is that every congressional power is limited — by the rest of the Constitution. Therefore, even assuming Congress has the power to regulate health care, it cannot do so in a way that violates fundamental constitutional rights. Congress could not, for example, deny Americans their First Amendment right “peaceably to assemble” even though public assemblies spread germs and, thus, presumably burden the health-care system.

Privacy, like speech and assembly, is a fundamental constitutional right, according to Roe. Although the immediate issue in Roe was abortion, the Supreme Court’s decision created a broad “zone of privacy” that included not only abortion but more generally the right “to care for one’s health and person,” as Justice William O. Douglas stated in his concurring opinion.

National Review
6/15/10